Court throws out case challenging 1995 polls results

Monday May 25 2020

 

By William Shao @TheCitizenTZ news@tz.nationmedia.com

After the October 29, 1995 Gen-eral Election was held, the High Court, on November 2, heard a petition filed by 10 opposition parties.
Judge Luhekelo Kyando, who heard the petition, told the court that despite the fact that the National Electoral Commission (NEC) was an undisputed tool to make decisions, the court had a jurisdiction of hearing the application of the plaintiffs.

Due to that, Judge Kyando told the court that the application filed by the opposition’s independent lawyer, Dr Masumbuko Lamwai, who died recently, had been agreed to be heard from 9am on November 3.

The court ordered the lawyers of the plaintiffs to present a chamber application in court on November 3 so that their case could officially start being heard and a decision made as per their claims. Following the court’s agreement on hearing the case, members and supporters of the opposition went wild celebrating inside the court after the judges had left.

Their rejoicing was echoed by fellow supporters and members who were outside the court after being prevented from entering the court.

Dr Lamwai, who was assisted by lawyers Dr Ringo Tenga and Dr Sengodo Mvungi, presented four arguments of the opposition in court about the polls. Firstly, they asked the court to order that the General Election was nil and void and that its results that were announced were nil and void as well.

Secondly, they asked the court to order the formation of a new electoral body that would incorporate all political parties.

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Thirdly, they asked the court to order presidential and parliamentary seat elections were rerun and fourthly they asked the court to order Chama Cha Mapinduzi and its presidential flagbearer Benjamin not to participate in political issues for a period of five years.

In the case, the first respondent was the Attorney General followed by NEC director and then CCM presidential contest-ant Benjamin and finally the party’s trustees. The plaintiffs were presidential aspirants Augustine Mrema (NCCR-Mageuzi), John Cheyo (UDP), Prof Ibrahim Lipumba (CUF) and others from different political parties.

Dr Lamwai, despite asking the court to nullify the results of the polls, claimed that many voters did not participate in the voting exercise because there were no voting equipment and that other polling stations across the country were delayed to be opened.

Dr Lamwai also told the court that there was the poor supervision of the whole voting exercise by the second respondent (NEC Director) hence favouring the ruling party.

Dr Lamwai also told the court that CCM was assisted by the fourth respondent (the party’s trustees) in violating the polls by printing fake papers for the party’s seat aspirants.

He also told the court that CCM was assisted by its trustees as well as its parliamentary seat contestants to bribe and hood-wink voters to vote for the party. However, Dr Lamwai’s arguments were opposed by Attorney General Sazi Salula, who claimed that the court had no judicial authority to hear the issue of the General Election because there were not any other tool with the authority of dealing with the matter other than NEC.

Substantiating the AG’s arguments, Judge Kyando told the court he had agreed with Dr Lamwai’s arguments over their claims and in that sense the case “would start being hear officially.”

The other judges in the case were William Maina and Josephat Mackanja.

On Monday, November 6, the case continued to be heard, but it took a new chapter after the judge hearing the case queried over the truth of what was reported in some newspapers that they (Judges) were bribed.

The move came shortly after Dr Lamwai stoop up in court and began to speak about the claims in their case. However, Judge Maina asked Dr Lamwai whether he had read the ‘Uhuru’ tabloid issued on November 6, 1995 with the headline that read: ‘CCM did not bribe the judges -- Kinana.’

Dr Lamwai responded that he was not used to reading the newspaper and that he had no idea of when the story was carried by the tabloid.

So, Judge Maina gave Dr Lamwai half an hour to read the Uhuru tabloid including the ‘Heko’ newspaper that came out on the same day and the latter came up with his stand over the report in question that his clients (opposition leaders) were the ones, who made the report.

Aside the ‘Uhuru’ tabloid that was carrying reports that refuted claims that the judges were bribed, the ‘Heko’ newspaper, on the other side, reported that “Indians continued to financially support CCM so as to sabotage the case” and ensure the CCM presidential flag bearer, Benjamin Mkapa, was hurriedly sworn-in.

Having read the newspapers, Dr Lamwai told the panel of the Judges that the report had no truth it because it was not given by any leader from the parties. He went on to tell the judges that the Uhuru newspaper was usually carrying news reports that were not well researched hence he was not surprised by that.

According to Dr Lamwai, the source of the report was the campaign manager of the third Following the court’s agreement on hearing the case, members and supporters of the opposition celebrated wildly inside the court after the judges had left the room...

Respondent in the case that the latter could have done anything possible to ensure the report was carried by the newspaper.

Thereafter, Judge Kyando told the court that a decision on the case would be made Wednesday at noon on November 8.

On November 8, while the case was in progress, the affidavit of the fourth respondent was rejected after it was discovered that it was missing signatures of the trustees of the party as required.

Dr Lamwai told the judges that despite the fact that he delayed to get the affidavit that had some deficiencies, it was signed by the lawyer of the respondents, Hussein Muccadam. Dr Lamwai went on to tell the court that the affidavit was supposed to be signed by the respondents as in other affidavits in the case, but, on the contrary, it was signed by Muccadam, who was not a CCM trustee. Defending, Muccadam told the court that he was a lawyer by profession representing his clients in court and that he was supposed to do anything on their behalf.

However, his argument was rejected by the budges who told the court that the fourth respondent in the case were in Dar es Salaam and that they should have signed the affidavit tendered in court by Muccadam hence it was not recognized by the court.

On November 9, the three judge panel, after the lawyers from both sides had finished making their arguments, adjourned the case until November 13 for a decision to be made over the case.

However, the High Court threw out the case lodged by the opposition and the judges told the court that despite high costs that would have been incurred for rerunning the polls, their affidavit tendered in court was incomplete with no sufficient evidence that the polls should be declared nullified.

Besides that, the court warned Dr Lamwai against his argument that called for the nullification of the polls and his clients would not agree the court’s decision of throwing out their case.

The court took such arguments as threats and signified that people should not agree with any decision of a court.

Dr Lamwai made an appeal on the same day of the court’s decision, which, however, was rejected by the court.

According to legal procedures, Dr Lamwai was told by the court that his appeal application was supposed to wait for seven days after the court’s decision was made and the respondents to be given leave to read that application.

 

In tomorrow’s edition, we will focus on how and why some political parties pulled out of the October 1995 polls.